The Supreme Court of Canada has denied an appeal of two B.C. Hells Angels who argued federal prosecutors should not be able to try them on criminal organization charges. Lawyers for John Punko and Randy Potts had argued before the court in March that the B.C. Court of Appeal was wrong when it overturned B.C. Supreme Court Justice Peter Leask, who ruled prosecutors could not proceed with criminal organization charges against two men linked to the East End chapter of the notorious biker gang.Ian Lindsay
/ Vancouver Sun Files

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The Supreme Court of Canada has dismissed an appeal by two B.C. Hells Angels who argued federal prosecutors should not be able to try them again on criminal organization charges.

On Friday, Canada's highest court upheld a B.C. Court of Appeal ruling that the Crown was entitled to take John Punko and Randy Potts to trial a second time on charges they committed crimes for the benefit of the East End Hells Angels.

The court victory doesn't automatically mean there will be a new trial. Federal prosecutors will meet with police to decide whether it is in the public interest to go back to court.

Lawyers for Punko and Potts had argued to the court in March that the appeal court was wrong when it overturned B.C. Supreme Court Justice Peter Leask, who ruled the Crown had already had one unsuccessful prosecution against the pair on a criminal organization count.

Leask reasoned in his November 2009 ruling that because a jury had acquitted Punko, Potts and two other Hells Angels on criminal organization charges in another case, the Crown could not get a second crack on the same charges.

The Supreme Court justices rejected Leask's reasoning that the earlier jury had decided the East End Hells Angels was not a criminal organization or they wouldn't have acquitted the four on that count.

""There were at least two logical explanations for the jury's decisions to acquit on the criminal organization counts . . . Leask J. could not conclude that a finding that the Hells Angels was not a criminal organization was logically necessary to the jury's verdict of acquittal," Supreme Court Justice Marie Deschamps said Friday.

She also said Leask "erred in law in drawing inferences on a balance of probabilities — a question of burden of proof — rather than considering whether a finding regarding the criminal nature of the organization was logically necessary to the acquittal — a question of logic and law."

Leask made his original order after a pre-trial motion by defence lawyers who said the Crown should be "estopped" — prevented — from arguing that the East End chapter of the Hells Angels was a criminal organization at the second trial of Potts and Punko. At the time, they were also facing charges of producing and trafficking methamphetamine, to which they both pleaded guilty.

Potts and Punko were arrested in July 2005 after a massive undercover investigation code-named Project E-Pandora.

The two-year probe involved the work of police agent Michael Plant, who infiltrated the Hells Angels and collected incriminating wiretap and surveillance evidence leading to a series of criminal charges and convictions against prominent club members.

RCMP Insp. Gary Shinkaruk, who worked on the case, said Friday he was pleased with the latest development.

"It has been a long road. I certainly respect and appreciate the Supreme Court of Canada's decision. I think that it's an appropriate decision. It is one that was frankly expected by us," Shinkaruk said.

"I think it helps to clarify some of the points of law for future cases. I think we remain steadfast in our view that the Hells Angels are a criminal organization and we will remain dedicated to bringing appropriate charges before the court so that they can make the ultimate decision."

That doesn't mean necessarily that there will be a new trial against Punko, who remains in jail until next year, and Potts, who is on day parole and has resigned from the HA.

"We are sitting down with the Public Prosecution Service to determine what the best course of action is given all the factors that we have to consider," Shinkaruk said.

Public Prosecution Service of Canada spokesman Dan Brien said he couldn't comment yet on whether a new trial will be held given Friday's ruling.

"It has just been handed down and we are reviewing it and we will decide on a course of action," he said from Ottawa.

July 2005 - John Punko and Randy Potts are among several Hells Angels and associates charged in a massive undercover operation, code-name Project E-Pandora.

July 2009 - After a nine-month jury trial on the first set of E-Pandora charges, Potts was convicted of four firearms and explosives counts and Punko was convicted of counselling a police agent to commit a crime and possession of a loaded pistol. Both are acquitted on a criminal organization charge.

November 2009 - Potts and Punko's second trial on drug trafficking and another criminal organization charge is set to begin in B.C. Supreme Court, but Justice Peter Leask rules that the Crown can't try them again on the criminal organization count because of the earlier jury finding. The Crown appeals.

December 2009 - Both Punko and Potts plead guilty to trafficking.

March 2010 - Leask sentences Punko to 14 months and Potts to a year on drug charges. The Crown appeals the sentences.

August 2010 - The B.C. Court of Appeal more than quadruples Punko's sentence, citing Leask errors.

February 2011 - The B.C. Court of Appeal overturns Leask's ruling quashing the criminal organization charge and order a trial. Punko and Potts appeal.

March 2012 - The Supreme Court of Canada hears arguments from the Public Prosecution Service of Canada and lawyers for Punko and Potts.

July 20, 2012 - The Supreme Court of Canada sides with federal prosecutors, upholds the B.C. Court of Appeal ruling overturning Leask, saying there is nothing preventing a trial on criminal organization charges against both Punko and Potts.

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